No Really… Size Doesn’t Matter

Categories: blog

You may have heard that unless an employer has 15 or more employees, it cannot be held liable for sexual harassment under Title VII or the Florida Civil Rights Act (“FCRA”).  While that is statutorily true, it doesn’t mean that the employer cannot be held liable based on the same actions under tort-based theories such as civil assault and battery in which there is no minimum number of employee requirement.

An ”assault” is an intentional unlawful threat of physical injury to another that creates in the victim a reasonable apprehension or fear of imminent harm.  See Sullivan v. Atlantic Federal Sav. & Loan Ass’n., 454 So. 2d 52 (Fla. 4th DCA 1984). Notably, there is no requirement of actual contact or physical injury to maintain a claim of assault. Furthermore, because the claim is subjective in nature, it can be very difficult for employers to disprove an employee’s claim.

A ”battery”, on the other hand, is an intentional infliction of harmful or offensive contact on the person of another. Id.  So, unlike an assault, an actual touching is required in order to maintain an actionable claim.

So, how are these tort-based claims applicable to small employers?  Well, imagine a situation in which the owner of a business with 8 employees has a propensity to make suggestive comments towards female employees.  Normally, such comments, even if unwelcomed would not necessarily create liability for the owner.  However, in the event the owner made a suggestive comment which put the employee in fear that the owner may actually physically act out his suggestive commentary or, even worse, he actually does, the business and business owner could be subject to tort liability.

Lesson for the small employer:

Act appropriately at all times and treat employees as if you are subject to the 15-employee threshold of Title VII and the FCRA.  By doing so, you will eliminate unnecessary risk for both you and your business and provide a safe and healthy work environment for employees.

Lesson for the employee:

Just because your employer has less than 15 employees, it doesn’t mean it cannot be held liable for the unwanted sexual touchings or similar threatening behavior by an owner or employee.  Consult an experienced employment attorney do determine whether you have an actionable claim.